EMI Records (Ireland) Ltd and Others v UPC Communications Ireland Ltd and Others

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Kelly
Judgment Date03 May 2013
Neutral Citation[2013] IEHC 204
Date03 May 2013

[2013] IEHC 204

THE HIGH COURT

[No. 12381 P/2012]
[No. 225 COM/2012]
EMI Records (Irl) Ltd & Ors v UPC Communications Irl Ltd & Ors
COMMERCIAL

BETWEEN

EMI RECORDS (IRELAND) LIMITED, SONY MUSIC ENTERTAINMENT (IRELAND) LIMITED, UNIVERSAL MUSIC IRELAND LIMITED AND WARNER MUSIC IRELAND LIMITED
PLAINTIFFS

AND

UPC COMMUNICATIONS IRELAND LIMITED, VODAFONE IRELAND, IMAGINE TELECOMMUNICATIONS LIMITED, DIGIWEB LIMITED, HUTCHINSON 3G IRELAND LIMITED AND BY ORDER TELEFONICA IRELAND LIMITED
DEFENDANTS

COPYRIGHTS & RELATED RIGHTS ACT 2000 S40(5A)

EMI RECORDS LTD & ORS v UPC COMMUNICATIONS IRELAND LTD UNREP CHARLETON 11.10.2010 2010/18/4444 2010 IEHC 377

EEC DIR 2001/29 ART 8(3)

EUROPEAN UNION COPYRIGHT & RELATED RIGHTS ACT REGS 2012 SI 59/2012

DIGITAL RIGHTS IRELAND LTD v MIN FOR COMMUNICATION & ORS 2010 3 IR 251 2011 1 ILRM 258 2010/12/2777 2010 IEHC 221

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EEC DIR 2009/140 ART 1(3)(A)

TWENTIETH CENTURY FOX & ORS v BT 2011 EWHC 1981 (Ch)

EMI & ORS v UPC UNREP CHARLETON 11.10.2012 2010/18/4444 2010 IEHC 377

EMI & ORS v EIRCOM UNREP CHARLETON 27.6.2012 2012/14/3953 2012 IEHC 264

I (H) v MIN FOR JUSTICE 2004 1 ILRM 27

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARS (NO1) 2005 3 IR 328

DOHERTY v SOUTH DUBLIN CO COUNCIL 2007 1 IR 246

FITZPATRICK v F K 2007 2 IR 406

Intellectual property - Copyright - Amicus Curiae - Neutrality - Injunction - Blocking order - Public interest - Test case - Copyright and Related Rights Act 2000 - Statutory Instrument 59 of 2012 - Copyright Directive 2001/29

Facts: These proceedings concerned an application brought by a company known as Digital Rights Ireland Limited to be appointed as amicus curiae, which was resisted by the plaintiffs. The defendants were neutral to the outcome. The plaintiffs were seeking an injunction pursuant to s. 40(5A) of the Copyright and Related Rights Act 2000 (as amended) that required the defendants to block or otherwise disable access by subscribers to the website ‘thepiratebay.org’ (‘the Pirate Bay’), a file sharing website that gave popular access to a large library of copyright material without the permission of the rightholders.

The applicant was founded in 2005 and was a not for profit undertaking. It described its function as a body seeking to protect ‘civil, human and legal rights in the digital age’. The applicant sought to be appointed as amicus curiae in order to inform debate on the issue. This was to be the first case to be adjudicated on the granting of injunctions against internet service providers following the passage of Statutory Instrument 59 of 2012 which was brought in with the aim of fully implementing Article 8(3) of the Copyright Directive 2001/29. The applicant argued that its inclusion was a necessity given the fact that the rights of parties outside of the proceedings would be affected if access to websites was capable of being blocked.

The plaintiffs argued that the applicant”s inclusion in proceedings would not be appropriate as its officers would be unable to play a neutral role in proceedings given the fact that its officers were linked to a number of websites and campaigns that had been opposed to Statutory Instrument 59 of 2012 being enacted, with one officer even publishing details online on how to circumvent blocking orders that were made in the United Kingdom. It was argued that because the applicant could not play a neutral role in proceedings, it could not assist the court in assessing what the public interest would be in relation to the outcome.

Held by Kelly J that in previous applications for appointment as amicus curiae, the applicant was a body that was recognised in either domestic or international law with a public role in the particular area of the litigation. It was noted that the applicant here had not attained such status. It was also clear that officers of the applicant had been involved in what they described as a ‘public interest campaign’ to oppose the introduction of Statutory Instrument 59 of 2012. The applicant could not be regarded as a neutral party. It was further pointed out that case law showed the court”s jurisdiction to appoint amicus curiae should be used sparingly, especially at a court level below that of an appellate court.

It was further held that it was unlikely the applicant would be able to bring any matter of public importance to the court”s attention which would not otherwise be available. It was agreed that this was to be the first case brought in relation to the powers given under Statutory Instrument 59 of 2012 following its passage, but it was noted that this was enacted to implement Article 8.3 of the Copyright Directive of 2001 in respect of which a wealth of case law had already been built up in the European Court of Justice as well as in other domestic jurisdictions. It was held that the applicant”s appointment as amicus curiae was not required.

Application refused.

Introduction
1

1. This is my judgment on the application of a company called Digital Rights Ireland Limited to be appointed as amicus curiae to this suit.

2

2. The application is opposed is opposed by the plaintiffs. The defendants are neutral in respect in respect of it.

The Proceedings
3

3. The principal relief sought by the plaintiffs is an injunction, pursuant to s. 40(5 A) of the Copyright and Related Rights Act 2000 (as amended). They seek an order requiring the defendants to block or otherwise disable access by subscribers to the website "thepiratebay.org" (the Pirate Bay) and related domain names, IP addresses and URL's set forth in the schedule to the plenary summons.

4

4. The plaintiffs are all Irish registered companies. Each one is a member of an international group of companies. For example, the first is the Irish member of the EMI group and the second is the Irish member of the Sony group.

5

5. The majority of Irish record companies, including the plaintiffs, are members of the Irish Recorded Music Association Limited (IRMA). That entity is the representative body of the record industry. The four major groups of companies which are represented through the plaintiffs in the membership of IRMA supply approximately 78% of the pop music sound recordings to Irish consumers.

6

6. The defendants are the largest broadband internet service providers in the State supplying between them, together with Eircom, over 85% of all broadband in the State.

7

7. Each plaintiff has an exclusive licence to make available in the State, whether by way of distribution to retailers or directly to the public via the internet, copies of the sound recordings, copyright in respect of which is owned by companies in their individual international group of companies. The Pirate Bay is a large and popular website. It is used for the purpose of making available, without the rightholders' consent, on an enormous scale, works which include the sound recordings in respect of which the plaintiffs are the exclusive licensees or the owners of the copyright. The Pirate Bay operates as a vast directory of copyright material that internet users (which include subscribers to the defendants' internet services) are making available for downloading, copying and onward distribution by other internet users. The directory indicates what material is available and who is making it available. The scale of this infringement of copyright is enormous.

8

8. The plaintiffs contend that, given the volume of material which is made available via the Pirate Bay website and the number of downloads from it, it is inevitable that a significant number of subscribers to the defendants' internet services are using the website to copy and make available recordings to other internet users.

9

9. In earlier proceedings before this Court, the court accepted evidence as to the huge scale of the violation of the plaintiffs' property rights which is taking place via the Pirate Bay website.

10

10. The plaintiffs believe that the defendants will not in fact object to being required to block the Pirate Bay websites because of the notorious scale of the copyright infringement which is taking place there.

Previous Action
11

11. In earlier proceedings between EMI Records Ireland Limited & Ors v. UPC Communications Ireland Limited [2010] IEHC 377, Charleton J. delivered judgment on 11 th October, 2010. Those proceedings sought injunctions against the defendant, an internet service provider, to prevent the theft of the plaintiff's copyright material by third parties illegally downloading it over the internet. In dealing with the injunction sought in respect of the activities of the Pirate Bay, the judge said this:-

"In the second paragraph of their prayer for relief, the recording companies ask for a blocking injunction against Pirate Bay. This site is responsible for the great bulk of internet piracy in this country. Mr. Kavanagh, as I have said, described how he used it. To begin illegally downloading copyright material, all that one needs to do is to access Pirate Bay, download the appropriate software from them, search on their website what swarms are active and what tracks are being offered, and then join one of those swarms using the relevant software. Regrettably on a full consideration of this matter, a blocking injunction is not available in Irish law.

Were it available, I would grant it. Mr. Harrison, in evidence on behalf of UPC indicated, how, through Eircom, when that access was blocked, he readily found a way through. However, this took him twenty minutes. Professor Nixon offered the opinion that such blocking was futile. I do not agree. In the telecommunications industry it has been noted that where an area moves from access to other areas, such as the Aran Islands to Dublin, or the Aran Islands to New York, by...

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